Citation Nr: 0803106
Decision Date: 01/28/08 Archive Date: 02/04/08
DOCKET NO. 01-07 607 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Newark, New
Jersey
THE ISSUE
Entitlement to an initial increased evaluation for post-
traumatic stress disorder (PTSD), currently rated as 50
percent disabling.
REPRESENTATION
Appellant represented by: Theodore C. Jarvi, Attorney
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
S. B. Mays, Associate Counsel
INTRODUCTION
The veteran had active duty from April 1944 to October 1945.
This appeal initially came before the Board of Veterans'
Appeals (Board) on appeal from an April 2001 rating decision
of the Newark, New Jersey Regional Office (RO) of the
Department of Veterans Affairs (VA), which granted service
connection for PTSD, and assigned a 10 percent evaluation.
The veteran disagreed with the evaluation and subsequently
perfected an appeal.
A hearing before the undersigned Veterans Law Judge was held
in June 2002 at the Central Office in Washington, D.C. A
transcript of that hearing is associated with the claims
folder and has been reviewed.
In September 2002, the Board issued a decision, in pertinent
part, increasing a disability rating for PTSD from 10 percent
to 30 percent. The veteran subsequently appealed the Board's
decision denying a disability evaluation in excess of 30
percent for PTSD to the United States Court of Appeals for
Veterans Claims (Court).
In March 2004, the Court issued an Order that vacated the
Board's September 2002 decision to the extent that it only
granted an increased rating from 10 percent to 30 percent for
service connection for PTSD, and remanded that portion for
readjudication consistent with the Court's February 2004
memorandum decision.
In June 2004, the Board remanded the case to the RO via the
Appeals Management Center (AMC) in Washington, DC for
compliance with the Veterans Claims Assistance Act. In an
October 2004 rating decision, AMC increased the veteran's
disability evaluation for service-connected PTSD to 50
percent.
A motion to advance on the docket was filed in February 2005
and granted in the same month.
In March 2005, the Board denied an initial evaluation in
excess of 50 percent for PTSD. The veteran subsequently
appealed that decision to the Court. In August 2006, the
Court issued an Order that vacated the Board's March 2005
decision and remanded the issue for readjudication consistent
with the Court's Order.
In October 2006, the Board remanded the case for a VA
examination.
In June 2007, the Board denied the veteran's initial
increased rating claim for PTSD. Subsequently, the veteran
filed a motion for reconsideration. Because there was
outstanding VA evidence at the time the Board rendered its
June 2007 decision, the Board separately vacated that
decision, denying the veteran's claim of entitlement to an
initial increased evaluation for service-connected PTSD. See
38 C.F.R. § 20.904(a) (2008).
The appeal is REMANDED to the RO via the Appeals Management
Center (AMC), in Washington, DC. VA will notify the
appellant if further action is required.
REMAND
As noted, the June 2007 Board decision was vacated because
there was outstanding VA medical evidence at the time the
decision was issued. Prior to analyzing the veteran's claim
de novo, the Board finds that further development is
necessary.
The record contains evidence added to the claims folder since
the February 2007 supplemental statement of the case (SSOC)
without a waiver of initial RO consideration. Specifically,
in June 2007, the veteran submitted to the Board VA treatment
records from the Jersey City VA Clinic dated through May 14,
2007, to include an April 2007 PTSD examination report
written by Dr. Remo. The RO should request all VA medical
evidence to date from the Jersey City VA Clinic.
Accordingly, the case is REMANDED for the following action:
1. The RO should ensure that all medical
evidence to date from the Jersey City VA
Clinic (to include from the Vet Center)
is obtained and associated with the
claims folder.
2. Following the above, if the RO
determines that the VA medical evidence
associated with the claims folder since
the last SSOC suggests a worsening of the
veteran's PTSD, the veteran should be
scheduled for a VA PTSD examination in
order to ascertain the current extent of
such disability.
Prior to the examination, the VA examiner
is requested to review the claims folder,
to include VA examination reports dated
in February 2001 and January 2007; Dr.
Remo's April 2007 examination report; and
all Jersey City Vet Center treatment
notes. A notation to the effect that
this record review took place should be
included in the report.
The examiner is requested to: (a)
determine all current manifestations
associated with the veteran's service-
connected PTSD and to comment on their
severity; and (b) specifically address
the degree of social and occupational
impairment caused by the veteran's PTSD.
A current Global Assessment of
Functioning (GAF) scale score should be
provided.
3. Thereafter, the RO should
readjudicate the claim de novo, taking
into consideration all evidence of
record. If the benefit sought on appeal
remains denied, the veteran and his
representative should be provided with a
supplemental statement of the case and
afforded the appropriate opportunity to
respond thereto.
Thereafter, the case should be returned to the Board for
further appellate consideration, if otherwise in order. The
Board intimates no opinion as to the ultimate outcome of this
case. The appellant has the right to submit additional
evidence and argument on the matter or matters the Board has
remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).